Last Updated: October 30th, 2022
Chapter I: Terms and Conditions for all Services
Chapter II: Additional Terms and Conditions for ICT Services
Chapter III: Staff Augmentation Services
CHAPTER I: Terms and Conditions for all Services
CLAUSE 1 - DEFINITIONS
- The following definitions are used in these General Terms and Conditions:
Affiliated Businesses: every business or legal entity that is classed as a subsidiary company (in Dutch: “dochtermaatschappij”) within the meaning of Article 2:24a of the Dutch Civil Code ("DCC") and/or as a group company (in Dutch: “groepsmaatschappij”) within the meaning of Article 2:24b DCC.
Claim(s): means any claim or proceeding of any nature (whether in contract, tort, breach of statutory duty or otherwise and including, but not limited to, a claim for negligence).
Client: every person or legal entity which places an Order with NMQ, or to whom NMQ submits a quotation/offer, or with whom NMQ concludes or has concluded a Contract in any form.
Confidential Information: means any and all information and material (including Client communications and Deliverables) disclosed by the disclosing party to the receiving party (whether in writing, verbalor in oral, graphic, electronic or any other form) that is marked as (or provided under circumstances reasonably indicating it is) confidential or proprietary, or if disclosed orally or in other intangible form or in any form that is not so marked, that is identified as confidential at the time of such disclosure. Confidential Information also means any nonpublic information pertaining to a party’s business. Confidential Information, includes, without limitation, any (a) trade secret, know-how, idea, invention, process, technique, algorithm, program (whether in source code or object code form), hardware, device, design, schematic, drawing, formula, data, plan, strategy and forecast of, and (b) technical, engineering, manufacturing, product, marketing, servicing, financial, personnel and other information and materials of, Discloser and its employees, consultants, investors, affiliates, licensors, suppliers, vendors, customers, companies and other persons and entities.
Contract(s): all written (including by email), oral or tacit agreements (to be) concluded between NMQ and a Client, including (but not limited to) Statement of Works, working orders and/or continuing performance contracts (in Dutch: “duurovereenkomsten”);
Controller: means the natural person or legal entity which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.
Deliverables: means all deliverables or other materials to be produced or provided by NMQ to a Client in respect of the (performance of) Services or as part thereof.
Documentation: means the operating manual and user instructions of any software supplied to the Client by NMQ, either recorded in the software, separate books or other media.
Errors: means a substantial failure to meet the functional or technical specifications stated in writing by NMQ and, in the case of custom-made software and websites, the functional or technical specifications explicitly agreed between the parties in writing. An Error shall only exist if the Client can prove it and if it can be reproduced.
General Terms and Conditions: these general terms and conditions for Services.
Good Industry Practice: means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a reasonably skilled and experienced operator engaged in providing services of the same kind as the Services.
Intellectual Property: means any and all intellectual property including, but not limited to, all contract documents and fee agreements for services, supplemental agreements, change orders, trade secrets, trademarks, copyrights, patents, inventions, discoveries, processes, methods, formulations, theories, ideas, techniques, know-how, research and development, strategies, plans, drawings, designs, models, prototypes, computer software, source code, hypertext markup language, and related materials and documentation.
Loaned Staff: means NMQ Employees being loaned temporarily to the Client to work under the Client’s guidance, control and responsibility pursuant to the Contract.
Losses: means any losses, Claims, liabilities, damages, costs or expenses in any way relating to or arising out of the performace of a Contract or the Services.
NMQ: the private limited liability company incorporated under the laws of the Netherlands: NMQ Holding B.V. (registered in the trade register of the Dutch Chamber of Commerce under file number: 61704814) as well as all of its (future) Affiliated Businesses.
NMQ Employee(s): means any employee or partner employed by NMQ who shall have been introduced to the Client pursuant to the Contract.
Personal Data : means any information relating to an identified or identifiable natural person.
Processor: means a natural person or legal entity which processes Personal Data on behalf of the Controller.
Order: any form of (oral or written) request of a Client for the performance of Services.
Secondment: means the (duration of) performance of work by Loaned Staff.
Services: means the scope of Services, working activities and/or Deliverables provided or performed by NMQ.
Staff Augmentation Services: means the provision by NMQ to the Client of one or more NMQ Employees having the qualifications and expertise as described in the Contract and/or applicable Statement of Work to work for the Client in a staff augmentation capacity;
Statement of Work(s): is the documentation (prepared and approved by both the Client and NMQ) that details the Services requested and sets forth to the extent applicable, among other things, project scope, schedule, various project activities and tasks to be performed by the parties, Deliverables, price and payment for services, acceptance procedures and criteria, and roles and responsibilities of the parties.
Business Day: means a period of eight hours on any day other than a Saturday, a Sunday or any day which is a bank holiday.
CLAUSE 2. APPLICABILITY
- These General Terms and Conditions shall apply to all legal relationships between a Client and NMQ – including (but limited to) quotations, offers, Orders and all (future, additional, subsequent or renewed) Contracts) – unless the applicability of these General Terms and Conditions is excluded or restricted by mandatory law, regulations or written agreement.
- The acceptance of a quotation, submitting an Order and/or or concluding a Contract with NMQ means that the Client accepts the application of these General Terms and Conditions and also operates to exclude the application of any and all general terms and conditions used by that Client.
- Deviations from these General Terms and Conditions are only effective if they are explicitly accepted by NMQ, in writing, and even then are only effective for the agreements in question.
CLAUSE 3. REALIZATION OF CONTRACTS
- All quotations, offers or proposals submitted or issued by NMQ to a Client are without obligation or commitment.
- NMQ is at all times free to reject an Order without providing reasons.
- A Contract shall only be realized and come into effect after an Order is accepted by NMQ, including when such an Order has been made by a Client in response to an already issued quotation, offer or proposal.
- If, as part of the acceptance of an offer, quotation or proposal, a Client introduces restrictions or changes to it’s Order, then a Contract will only become effective after NMQ has provided written notification to the Client that it agrees with such restrictions or changes.
CLAUSE 4. RESPONSIBILITIES OF THE PARTIES
- NMQ and its employees and/or subcontractors will comply with reasonable policies and security procedures of the Client. Upon a Client’s request, NMQ will provide status reports to the Client describing the progress of any Services.
- NMQ shall perform the Services in good faith and in accordance with Good Industry Practice. NMQ disclaims all other warranties, either express or implied.
- NMQ will use reasonable efforts to supply the Services in accordance with any timetable referred to in a Contract or Order or otherwise specified by the parties in writing. However, unless both parties specifically agree otherwise in writing, all dates given by NMQ or specified by the Client for the Services are intended for planning and estimating purposes only and are not contractually binding. In the event that an accepted Order or a Contract do not specify deadlines, NMQ will provide its Services within the periods that NMQ considers acceptable. Concerning the compliance with the aforementioned periods, the repercussions of hold ups, failure to respond or failure to show up, will be at the Client’s own risk.
- The Client is responsible for determining that the scope of the Services is appropriate for its needs and shall be responsible for compliance with all applicable national and foreign legislation and regulations in the area of protection of privacy and personal data including where the Client provides NMQ with – or puts at NMQ’s disposal – (personal) data of its personnel, its clients or other third parties, even if such (personal) data originates from third parties or is provided to NMQ or put at NMQ’s disposal by third parties at Client’s request.
- NMQ has no responsibility to monitor events occurring after the agreed upon end date or date of completion of the Services nor to update any Deliverable unless the parties have agreed otherwise in writing explicitly.
- The Client shall always grant the requisite cooperation and make all the requisite data, information, materials, assets and/or other prerequisites for the proper performance of the Services and/or the Contract (hereinafter: the “Documentation”) available to NMQ in a timely manner.
- The Client guarantees NMQ that the former is entitled to dispose of the Documentation it has made available to NMQ and shall indemnify NMQ against all liability in that respect.
- In the event that the Client fails to place the Documentation necessary for performing the Contract at the NMQ's disposal or fails to do so on time or in accordance with the arrangements made, or in the event that the Client otherwise fails to satisfy its obligations, NMQ shall be entitled to suspend performance of the Services and/or the Contract and to charge any resulting costs in accordance with its regular rates.
- Subject to NMQ’s employees adhering to the Client’s health and safety policies, the Client shall be liable for any damage incurred by employees of NMQ and/or third parties in connection with the performance of the Services as a result of any act or omission on the part of the Client and/or due to dangerous situations in its business and/or at the site designated by the client. The Client shall indemnify NMQ against any Claims in that context.
- The Client shall be required to compensate NMQ for all damage suffered or to be suffered as a result of any failure to comply with any obligation under these General Terms and Conditions and/or a Contract.
CLAUSE 5. PRICES AND SUPPLY
- Unless otherwise explicitly agreed upon, all prices specified by NMQ are in euros, excluding sales tax (VAT) and other governmentally-imposed charges and/or other levies and charges.
- Listed and/or stated prices are without obligation and may therefore be altered at any time by NMQ. Agreed upon prices (in Contracts already concluded) are in principle binding, with the exception of obvious (printing) errors or mistakes.
- In the event that, as a result of additional work expressly commissioned by the Client, the price and/or rate is higher than what had been agreed, NMQ shall have the right to adjust the ultimate invoice amount by submitting its subsequent calculations regarding the work involved. Such calculations shall be based on the initially agreed rates and prices.
- Except in cases were NMQ and the Client have concluded a firm-fixed Contract, NMQ shall at any time be entitled to adjust the agreed price or rate by means of a written notification to the Client.
- During the term of a fixed term Contract, in the event of a change (not attributable to NMQ) in any single cost-determinative factor for a product during the period between the date the Contract was concluded and the delivery date, NMQ shall be entitled to adjust the agreed price or rate accordingly by means of written notification to the Client, regardless of whether the increase in the cost price was foreseeable at the time of the offer and/or the Contract was concluded. Cost-determinative factors may include (but need not be limited to) the following: duties, taxes and/or currency fluctuations and increases in the prices for materials, purchases and/or transportation.
- In the event that the new price or rate applicable pursuant to Clause 5.4 or 5.5 above exceeds the originally-agreed price or rate by twenty (20) percent, the Client shall be entitled to terminate (in Dutch: “opzeggen”) the Contract at no charge and without subject to a specific notice period. Such termination shall come into effect on the date on which the price or rate adjustment stated in the notification from NMQ would become effective, provided that the Client notifies NMQ in writing within five Business Days after receipt of the notification of the price or rate adjustment. In the event of a termination of the Contract pursuant to this Clause, NMQ shall not be obliged to pay any damages to the Client.
- Supply times for the performance of the Services indicated by NMQ are indicative only. If the supply time is exceeded, the Client gains no right to compensation, far less any right to cancel the Order or dissolve (in Dutch: “ontbinden”) the Contract, unless and to the extent that the delay is such that it would be unacceptable to uphold the Contract according to standards of reasonableness and fairness.
CLAUSE 6. COMPENSATION AND PAYMENT OF INVOICES
- NMQ shall be entitled to compensation as agreed upon. Unless explicitly agreed otherwise in writing, this compensation shall not depend on the outcome of the Services. NMQ shall be entitled at any time to require that the Client make full or partial payment in advance and/or furnish security (additional or otherwise) for payment of the price. NMQ shall not be required to commence contract performance or to proceed prior to the requisite payment in advance having been made and/or the requisite security having been furnished/
- All costs incurred by NMQ which are in reason necessary for a proper performance of the Services (including – but not limited to – hours of travel, travelling and hotel expenses, overhead charges and other costs or out of pocket expenses related to the Services) shall be charged separately to the Client, unless agreed otherwise in writing explicitly.
- If the work is performed on the basis of subsequent calculations, Invoices of NQM will be submitted monthly for Services performed and expenses incurred during the prior month. Invoices shall mention VAT and shall include an accounting and verification of Services and (out of pocket) expenses.
- Unless otherwise explicitly agreed upon, payment for each invoice shall be due within thirty (30) calendar days after the date the invoice is received.
- The Client have to review invoices promptly upon receipt. Unless notified otherwise in writing to NMQ, invoices shall be considered approved after ten (10) calendar days from the date of receipt the invoice.
- Any form of suspension (in Dutch: “opschorting”) of payment of any due and payable invoice by a Client, as well as setting off (“verrekening”) any amount which is due and payable, is not permitted and is expressly excluded, in which respect the Client waives all rights thereto.
- In case of overdue or non-payment, the Client shall be in default by operation of law and is liable to pay interest on the outstanding amount at a rate of five (5) percent per month (in which respect a part of a month shall count as an entire month) from the due date until paid, without any prior notification or any further notice of default being required, and without prejudice to NMQ’s right to additionally claim full compensation of incurred damages and/or to claim all other available remedies under the applicable law (including – but not limited to – claiming performance).
- If NMQ has reason to doubt the creditworthiness of a Client (a matter to be determined exclusively by NMQ), NMQ is entitled to demand security to be lodged by the Client for the fulfilment of its obligations, specifically including once the Contract has been finalised. If the security demanded by NMQ is not lodged, NMQ may suspend the supply of the Services.
- If the Client, after having received a notice of default which is in accordance with Article 6:82 DCC, nevertheless remains in default of its payment obligation, the claim may be put out to a third party for debt collection, in which case the Client shall also be liable for all the (extra-) judicial and collection costs incurred by NMQ, which amount shall be set at a minimum of fifteen (15) percent of the total amount due and without prejudice to NMQ’s other rights.
- Each payment by a Client shall be applied first in payment of any interest and costs due (including any (extra-) judicial costs) and, subsequently, in payment of part or all of the principal sum of the claim outstanding for the longest period, irrespective of any description that the Client may have given to the payment.
CLAUSE 7. TERMINATION OF CONTRACTS
- Unless terminated sooner in accordance with its terms, a Contract shall be terminated (in Dutch: “beëindigd”) by operation of law once the Services have been performed.
- Unless agreed otherwise, in deviation of Article 7:408 subsection 1 DCC, neither party may (prematuraly) cancel (in Dutch: “opzeggen”) a Contract which is entered into for a definitive period of time or for the duration of a project (fixed term contract).
- Unless agreed otherwise, a Contract entered into for an indefinite period of time can be cancelled (in Dutch: “opgezegd”) by either party at the end of each month, without cause, by giving written notice to the other party subject to a notice period of:
- three (3) full calendar months in case the Contact (excluding the notice period) has elapsed endured less then five (5) years;
- six (6) full calander months in case the Contact (excluding the notice period) has elapsed endured five (5) years or more.
Termination (in Dutch: “ontbinding”) in case of a breach
- Without prejudice to the right as referred to in Clauses 1, 7.2 and 7.3 above, either party shall be entitled to terminate any Contract in accordance with of Article 6:265 DCC (and all other applicable legal requirements) with immediate effect by sending a written termination notice to the other party, in case any of the following events will occur:
- a breach by the other party of an obligation under that Contract and that party is in default (in Dutch: “verzuim”) as referred to in Article 6:265 DCC subsection 2 DCC;
- in the event the other party has filed a request for a moratorium or its own bankruptcy, or admits in writing its inability to pay its debts as they become due;
- the other has been declared bankrupt.
- A termination or cancelation of a Contract under this Clause 7, will have no retroactive effect. Upon termination of the Contract, the Client will compensate NMQ under the agreed terms for the Services already performed and expenses incurred through the effective date of termination. Upon termination, any amounts invoiced in connection to Services performed prior to the termination shall be due and payable immediately.
CLAUSE 8. CONFIDENTIALITY AND NON-DISCLOSURE
- All Confidential Information (defined in Clause 1 above) disclosed hereunder will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the confidential Information of the disclosing party and will use at least the same degree of care, discretion and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential information, but in no case less than reasonable care. The receiving party will limit access to Confidential Information to its affiliates, employees and authorized representatives with a need to know and will instruct them to keep such information confidential.
- Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party (a) to the extent necessary to comply with any law, rule, regulation or ruling applicable to it, (b) as appropriate and with prior notice where practicable, to respond to any summons or subpoena or in connection with any litigation, and (c) relating to a specific employee, to the extent such employee has consented to its release. Upon the request of the disclosing party, the receiving party will return or destroy all Confidential Information of the disclosing party than is in its possession.
CLAUSE 9. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
- “NMQ Intellectual Property” shall be any and all Intellectual Property created by NMQ or its personnel prior to or independent of NMQ’s provision of Services to a Client under a Contract. All right, title, and interest in and to NMQ Intellectual Property shall reside solely with NMQ. To the extent that any NMQ Intellectual Property is contained in any of the Deliverables or is required for the Client to use the Services (other than NMQ Intellectual Property that is subject to a separate license agreement between NMQ and the Client), NMQ grants to the Client and it’s Affiliated Businesses – upon full and final payment to NMQ hereunder – a limited, non-exclusive, non-transferable, royalty-free license to use such NMQ Intellectual Property solely for such purpose, and solely during the term of a Contract.
- “Clients Intellectual Property” shall be any and all Intellectual Property created by a Client, its Affiliated Businesses, or its personnel prior to or independent of, or in connection with NMQ’s provision of Services to that Client under a Contract. All right, title, and interest in and to Clients Intellectual Property shall reside solely with the Client. Notwithstanding the foregoing, to the extent that any Clients Intellectual Property is required for NMQ to perform the Services, the Client grants to NMQ a limited, non‑exclusive, non-transferable, royalty-free license to use the Clients Intellectual Property solely for such purpose, and solely during the term of the Contract.
- Each party shall retain all rights, title, and interest in and to all their own Intellectual Property, technology, the content, service, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by any party relating to the innovation or development of any software or service. Unless agreed otherwise, performing a Contract or Services does not convey any right of ownership or license to such software and related development other than the license described above in Clause 9.1 and 9.2, and in no case is any license granted from either party to the other beyond the term of a Contract. In no event, including after termination, may either party create any derivative works based, in whole or in part, on the other’s Intellectual Property, or retain a third party that creates any derivative works based, in whole or in part, on the other party’s Intellectual Property.
- Except as provided above or when a separate license agreement shall apply, upon full and final payment to NMQ hereunder, all Deliverable(s) (or parts thereof) and all documents, designs, ideas, inventions, computer programs, data, webinars, whitepapers, reports, computer documentation and other tangible materials authorized or prepared by NMQ in the course of providing Services or delivering the Deliverables contemplated by any Contract (collectively: the "Works") will become the sole and exclusive property of the Client in their tangible form and the Client may use the Works subject to the other provisions of the Contract for the purpose for which the Deliverables or work product were supplied.
- The Client acknowledges that in performing the Services hereunder, NMQ may also utilize proprietary works, including without limitation: software, tools, specifications and other materials, that were developed by NMQ or a third party prior to the start of or outside of a Contract and that were not created specifically for the Client (“Preexisting Materials”). Unless agreed otherwise, to the extent NMQ incorporates Preexisting Materials into the Works, NMQ grants the Client – upon full and final payment to NMQ hereunder – a perpetual, royalty-free, irrevocable worldwide right and license (including the right to grant sublicenses) to copy, modify, distribute and otherwise use Preexisting Materials to the extent incorporated in, contained in or reasonably required for the use or operation of the Works.
CLAUSE 10. LIMITATION OF LIABILITY, LIMITATION ON ACTIONS AND INDEMNIFICATION
- NMQ shall accept its statutory obligations to pay compensation only if and to the extent that this liability is evidenced on the basis of the provisions in this Clause. Nothing in a Contract shall exclude or restrict (or prevent a claim being brought in respect of);
- any liability finally judicially determined to arise primarily from the intentional misconduct (in Dutch: “opzet”);
- or comparable instance of gross negligence (in Dutch: “bewuste roekeloosheid”) of NMQ; or
- any other liabilities which cannot lawfully be limited or excluded, save to the extent permitted by law.
- NMQ shall not be liable for indirect or consequential Losses (in Dutch: “indirecte schade” or “gevolgschade”), such as (but not limited to): loss of profits, income, revenue, turnover, anticipated savings, business, contracts, goodwill or commercial opportunities, as well as all other (forms of) consequential harm or business losses. Consequential and/or indirect Losses also explicitly includes al Losses that are arising out – or are the result – of errors, malfunctions and/or failures in the Deliverables (except as far as it concerns Losses to the Deliverables itself).
- NMQ is only liable for direct Losses. Direct Losses are defined as Losses other than indirect or consequential Losses, incurred by the Client and can/shall solely (exclusively) be reasonable costs:
- to establish or determine the cause and the scope of the Losses, insofar as such establishments/determinations relate to direct Losses in the sense of these General Terms and Conditions;
- incurred to bring the faulty performance by NMQ in line with the Contract, insofar as these are attributable (“in Dutch: “toerekenbaar”) to NMQ;
- costs incurred to prevent or limit the Losses insofar as the Client proves that these costs have resulted in a limitation of the direct Losses as referred to in these General Terms and Conditions.
- In addition, the maximum aggregate liability of NMQ for Losses shall be limited to two hundred percent (200%) of the amount (exclusive of Dutch VAT) paid or payable to NMQ by or on behalf of the Client with respect to the provided Services or the Deliverables which gave rise to the claim or action, such with a maximum of the total amount excluding VAT invoiced to the Client under the applicable Statement of Work or – in the absence of a Statement of Work – under the relevant Contract in the previous six (6 ) months, which amount shall at all times be limited to EUR [amount] per event, whereby a series of connected events shall qualify as one single event
- Notwithstanding the provisions in the previous paragraphs, any liability for damage arising from or in connection with a breach of contract or wrongful act of NMQ, its employees, partners and/or persons with whom NMQ has entered into a cooperation agreement, or based on any other legal ground, shall in any case be limited to the amount that the liability insurer of NMQ actually pays as a benefit under the liability insurance policy in the matter concerned (per instance of liability, per year of insurance cover), plus the amount of the deductible under that insurance policy.
- In no event shall NMQ be liable for any limited use or loss of data that could have been prevented by a Client executing adequate and proper back-up and storage procedures in line with common market practice, contracts, goodwill, revenues or profits (whether or not deemed to constitute direct losses) or any consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense relating to the Contract, the Deliverables and/or the provided Services.
- NMQ will not be liable for Losses arising as a result of the provision of false, misleading or incomplete information or documentation, noncompliance with applicable legislation or regulations in the area of protection of privacy and personal data within the Client’s sphere of responsibility or the withholding or concealment or misrepresentation of information or documentation by any person other than NMQ.
- The Client shall indemnify and hold harmless NMQ for all Losses incurred in connection with any third party Claim, except to the extent finally judicially determined to have resulted primarily from the intentional misconduct (in Dutch: “opzet”) or comparable instance of gross negligence (in Dutch: “bewuste roekeloosheid”) of NMQ.
- Neither party shall be liable for any delays or nonperformance directly or indirectly resulting from circumstances or causes beyond its reasonable control.
- Any complaints about nonperformance in the provision of Services and/or any occurred damages, shall be brought forward by the Client in a timely fashion, but in any case not later then one (1) month after the Client became (or reasonably ought to have become) aware of the nonperformance, such under the penalty of the lapse of all rights (the forfeiture of all rights to claim).
- Any claim or right to make a claim on the part of the Client against NMQ lapses if and as soon the Client raises court action against NMQ later than twelve (12) months after the Client became (or reasonably ought to have become) aware of the existence of that claim or damage.
- The liability limitations are also agreed for the benefit of NMQ its employees, auxiliary persons, subcontractors and all other parties involved in the execution of a Contract
- In circumstances where all or any portion of the provisions of this Clause 10 are finally judicially determined to be unenforceable, the aggregate liability of NMQ for Losses shall not exceed an amount which is proportional to their relative responsibility for the Losses to which the claim relates taking into account the contributory negligence (if any) oft he claimant and the responsibility and/or liability of any third party.
CLAUSE 11. NON-SOLLICITATION
- During the term of a particular Statement of Work or (in absence of a Statement of Work) the Contract, and for a period of six months after its termination or completion, neither party shall, directly or indirectly and without the prior written approval of the other party, hire or recruit any of the employees of the other party.
- In case of a breach of its obligation described herein, the breaching party shall, for each breach, pay to the non-breaching Party as liquidated damages an amount equal to:
- in case NMQ is the breaching party, three (3) months gross salary of the employee so hired or recruited, which amount represents a fair and reasonable estimate of the Client’s damages in such breach;
- in case the Client is the breaching party, the fees paid by the Client to NMQ for the Services in the three (3) months period prior to the professional becoming an employee of the Client, which represents the sole remedy of NMQ and fair and reasonable compensation.
CLAUSE 12. DATA PROTECTION
- The Client acknowledge that Personal Data may be processed by NMQ as a Controller, for the purpose of or in connection with (a) the provision of Services; (b) applicable legal or regulatory requirements; (c) requests and communications from competent authorities (the: “Purposes”). Each party shall comply with applicable data protection laws and regulations when processing Personal Data.
- The Client further acknowledge that Personal Data may be disclosed to, and processed by, other NMQ entities and/or competent authorities for the aforementioned purpose. Personal Data may also be disclosed to, and processed by, other third parties to the extent reasonably necessary in connection with the aforementioned Purposes.
- The Client further acknowledge that Personal Data may be processed by NMQ as a Processor in connection with the provision of Services.
CLAUSE 13. MISCELLANEOUS
- Any provisions of these General Terms and Conditions which either explicitly or by their nature extend beyond the expiration or termination of the General Terms and Conditions shall survive such expiration or termination, including (but not limited to) without limitation, the Clauses: 5 (Compensation and Payment of Invoices), 8 (Confidentiality and Non-disclosure), 9 (Intellectual Property Rights and Ownership), 10(Limitation of Liability, limitation on Actions and Indemnification), 11 (Non-Solicitation), 13 (Miscellaneous) and 14(Applicable law and Competent court).
- The headings in these General Terms and Conditions are for convenience only and shall not affect the interpretation of the General Terms and Conditions. No rights may be derived from these headings.
- In these General Terms and Conditions, Dutch terms and expressions of law and Dutch legal concepts are expressed and translated in English terms. Where indicated in italics, the meant Dutch terms of these English terms are given. Therefore such Dutch (legal) terms and/or expressions of law and legal concepts as used in these General Terms and Conditions shall have the meaning attributed to them according to Dutch law, and these General Terms and Conditions should be read and interpreted accordingly.
- If, and for whatever reason, a provision in these General Terms and Conditions appears to be non-binding, or is declared null and void or is deviated from, these General Terms and Conditions remain effective in all other areas.
- Whenever the content of the various chapters of these General Terms and Conditions conflict, the more specific chapter applicable to the Services shall take precedence. Therefore, the terms and conditions of Chapter B shall be awarded a higher order of precedence than those of Chapter A, when Chapter B is applicable.
- NMQ will replace the provision alluded to in the previous paragraph by a new, legally acceptable, comparable, provision that will be binding and will deviate as little as possible from the non-binding provision, taking into account the objective and purpose of these General Terms and Conditions.
- If NMQ has explicitly or tacitly permitted deviations on any point or part of these General Terms and Conditions, or has accurately applied them, either for short or extended periods of time, it does not detract in any way from NMQ’s right to demand that these conditions be strictly adhered to in future. A waiver of any breach of any provision of these General Terms and Conditions shall not be construed as a continuing waiver of other breaches of the same or other provisions of these General Terms and Conditions.
- In case a stipulation or clause in a Contract deviates from or contradicts with these General Terms and Conditions or an offer or quotation, the provisions in that Contract will prevail.
- NMQ is entitled to unilaterally amend or adjust these General Terms and Conditions for time to time, if circumstances give cause to do so, also during the term of a Contract.
- NMQ is entitled to transfer its rights under any Contract with a Client, either in full or in part, to third parties. The Client irrevocably agrees to this, now in advance, and will lend its unconditional cooperation within the meaning of Article 6:159 DCC.
- All Contracts between a Client and NMQ are accepted under the exclusion of the provisions contained in Article 7:404, 7:407 subsection 2 and 7:409 DCC. NMQ may subcontract any Services under the Contract to any subcontractor.
- No Contract or legal relationship created between a Client and NMQ hereto pursuant to any Contract, nor any course of dealing between the parties hereto is intended to create, or shall create, an employment relationship, a joint venture, partnership or any similar relationship, unless explicitly agreed otherwise.
CLAUSE 14. DISPUTES: APPLICABLE LAW, COMPETENT COURT, ARBITRATION
- All Contracts between NMQ and a Client, these General Terms and Conditions and any and all disputes or non-contractual obligations stemming from or associated with them are exclusively governed by the laws of The Netherlands. The application of the United Nations Convention on International purchase contracts for movable property – in other words the 1980 Vienna Sales Convention (CISG) – is explicitly excluded.
- All disputes between NMQ and a Client arising from a Contract and/or these General Terms and Conditions will be submitted in the first instance exclusively – i.e. excluding any other court – to the competent Judge at the District Court in Amsterdam.
- Notwithstanding the provision of Clause 14.2, in case:
- the Client has its registered office (or country of establishment) outside the European Union; and
- if NMQ will be the claimant (in Dutch: “eisende partij”),
only NMQ shall have the right (at its own and full discretion) to submit a dispute or claim arising out of or relating to a Contract to the Dutch Arbitration Institution (in Dutch: “Stichting Nederlands Arbitrage Instituut” or “NAI”) in Rotterdam, in which case that claim or dispute shall be exclusively settled by an arbitral tribunal in accordance with the – at that moment most recent version of the – ‘Arbitration Rules of the Netherlands Arbitration Institute’ (in Dutch: “Arbitragereglement van het Nederlands Arbitrage Instituut”).
Unless the parties will agree otherwise, the following shall apply to the arbitration:
- the arbitral tribunal shall be composed of one arbitrator;
- the arbitral tribunal shall be appointed according to the so called list procedure (in Dutch: “lijst procedure”);
- the place of arbitration shall be Rotterdam;
- the proceedings shall be conducted in the Dutch language;
- the arbitral tribunal shall decide as ‘amiable compositeur’ (in Dutch: “goede personen naar billijkheid”) and with due consideration of the applicable Dutch law;
- consolidation of the arbitral proceedings with other arbitral proceedings, as provided for in Article 1046 of the Dutch Code of Civil Procedure and Article 39 of the Arbitration Rules of the Netherlands Arbitration Institute, is excluded;
- appealing against the arbitral judgement is excluded.
CLAUSE 16. DATE AND LOCATION OF GENERAL TERMS AND CONDITIONS
- These General Terms and Conditions are adopted on [date] and can be consulted via:
CHAPTER II: Additional Terms and Conditions for ICT Services
The provisions set out in this Chapter II shall be applicable alongside the general provisions in Chapter I of these General Terms and Conditions, and shall apply to all Services proposed by NMQ under a Contract which relate to (a) the advice, development, implementation, delivery, maintenance, support, testing or evaluation of ICT-components, including, without limitation, hardware, software, platforms and means of communications and
(b) automated processing of data, including, without limitation, extraction, transport, transmission and analytics of data – whether or not collated or enriched with third party data – as well as the provision of remote access to Deliverables in any form or format.
CLAUSE 16. RESPONSIBILITIES OF THE PARTIES
- NMQ shall perform the Services in good faith and in accordance with Good Industry Practice. NMQ disclaims all other warranties, either express or implied, except and then only to the extent that NMQ has explicitly agreed in the Contract to provide the Client a result conditional to the result having been described accurately. Agreements concerning a service level must always be explicitly agreed in writing.
- NMQ shall be obliged to follow timely and sensible instructions of the Client if this has been agreed in writing. NMQ shall not be required to follow instructions which change or supplement the substance or scope of the Services.
- NMQ does not warrant that the Services shall be provided without Errors or without interruptions. If defects in the Deliverables are a direct consequence of products, software, data carriers, procedures or operating actions for which NMQ has been made responsible under the Contract explicitly, NMQ shall repeat the Services in order to fix these defects to the best of its ability, provided the Client notifies NMQ of these defects in writing and in detail as soon as possible, but no later than within one week after receiving the Deliverables. If NMQ is not responsible for the defects, NMQ shall charge the costs of any repetition to the Client according to its usual rates. The Client shall not have any other rights pursuant to defects in the Deliverables besides those described in this paragraph. NMQ shall endeavor to make reasonable business efforts to fix Errors in any development, delivery, installation, implementation or configuration under NMQ contractual responsibility within a reasonable time period pursuant to a written and detailed report having been provided to NMQ within six weeks after delivery or, if an acceptance test has been agreed between the parties, within six (6) weeks after acceptance. NMQ does not warrant that any software shall operate without interruption, Errors or other defects or that all Errors and other defects shall be corrected. Repairs shall not be performed free of charge, unless agreed otherwise in writing. NMQ is entitled to charge repair costs according to the rates agreed or - in the absence of such agreement - its usual rates:
- if the Client makes changes or has changes made to the software without NMQ written permission, which permission shall not be withheld on unreasonable grounds;
- if there have been operating errors or improper use on the Client's part or other causes outside the reasonable sphere of influence of NMQ; or
- if the errors could have been ascertained during and/or before the agreed acceptance test.
- NMQ shall not be responsible for fixing mutilated or lost data. Errors shall be fixed at a location to be determined by NMQ. NMQ shall be entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in the software. NMQ shall not have any obligations concerning fixing Errors reported after the expiry of the reasonable period referred to above, unless the parties have concluded a maintenance agreement which includes such a duty to fix.
- Unless deviating arrangements have been made in writing in a Statement of Work or in the Contract, any agreement to provide the Client with a result, milestones and budgets or fixed fees shall be conditional to the unhindered and uninterrupted performance of Services by NMQ and the absence of facts or circumstances outside the reasonable sphere of control of NMQ which hinder or interrupt the Services. NMQ will be entitled to adjustment of schedules and fees to the extent that these are caused by facts or circumstances outside the reasonable sphere of control of NMQ which hinder or interrupt the Services.
- In the event of a consecutively phased or staged project, NMQ shall not start Services which are part of a stage until the Client has approved the results of the preceding stage in writing.
- NMQ shall deliver software to be developed or delivered to the Client on the agreed type and format of data carriers and install it as much as possible in accordance with the specifications recorded in writing, with installation only occurring if installation by NMQ has been agreed in writing.
- In the event the Client has engaged NMQ to provide maintenance for software or if the user's fee for the software includes maintenance:
- the Client shall provide detailed notice to NMQ of the Errors observed in the software in accordance with procedures agreed upon or NMQ s usual procedures.
- After receiving notice, NMQ shall, to the best of its ability, endeavor to make reasonable business efforts to fix Errors and/or to make improvements in later, new versions of the software. Depending on the urgency, the results shall be provided to the Client in the manner and within the time period to be determined by NMQ. NMQ shall be entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in the software.
- NMQ shall provide improved versions of the software to the Client when they become available. NMQ shall no longer be required to fix any Errors in the old version or to provide support regarding an old version three months after an improved version becomes available. In providing a version with new options and functions, NMQ may require the Client to enter into a new agreement with NMQand to pay a new fee for this version being made available.
- In the absence of express agreements in this regard, the Client itself shall install, set up, design parameters for and tune the corrected software or the new version provided and, if necessary, adjust the equipment, user environment and working methods used in this connection. Unless explicitly otherwise agreed, NMQ shall not be required to convert data.
- Maintenance shall not include fixing mutilated or lost data.
- NMQ shall supply to the Client the number of copies of the Documentation as specified in the Contract.
- If the Client does not enter into a maintenance agreement with NMQ at the same time that the agreement to develop or provide the software is concluded, NMQ cannot be required to enter into a maintenance agreement at a later time.
- In the absence of an explicitly agreed invoicing schedule, all amounts pertaining to maintaining software shall be owed before the maintenance period commences.
- The Client is responsible for selecting, using and applying in its organization the equipment, software, websites, databases and other products and materials and the services to be provided by NMQ, and shall also be responsible for monitoring and performance of security procedures and proper system management.
- The Client shall furnish NMQ in a timely manner with all data or information which is useful and necessary to execute the Contract properly.
- The data carrier used by the Client to furnish software, websites, materials, databases or data to NMQ on a data carrier, shall meet any specifications prescribed by NMQ or – lacking such – industry standards.
- The Client is responsible for its own systems and any telecommunications facilities, including the internet, used for the Services.
- In the event NMQ assigns access or identification codes to the Client, NMQ may change the assigned access or identification codes, the Client shall treat all such codes as confidential and with due care and shall only disclose them to its authorized employees.
- The Client shall be obliged to notify NMQ of Errors immediately.
- In the event NMQ has been engaged by the Client to develop, provide, install, implement or configure software:
- the Client shall acquire and install the software in accordance with the specifications recorded in writing. In the absence of express agreements in this regard, the Client itself shall install, set up, design parameters for and tune the software and, if necessary, adjust the equipment, user environment and working methods used in this connection. Unless explicitly otherwise agreed, NMQ shall not be required to convert data.
- If an acceptance test has been agreed, the test period shall be [number] days after the Services shall have been completed, during which the Client shall not be allowed to use the software for productive or operational purposes. NMQ may always require, hence, even if this has not been explicitly agreed, that the Client conduct a proper test of sufficient scope and depth using sufficiently qualified employees as to interim or other results of the development work and that the test results be reported to NMQ in writing and in a well-organized and comprehensible manner.
- Services in connection with development, provision, installation, implementation or configuration of software shall be deemed accepted by the parties:
- if the Client makes any use of the software for productive or operational purposes before acceptance;
- if an acceptance test has not been agreed between the parties: at the time of delivery or, if installation by NMQ has been agreed in writing, when the installation shall have been completed, or
- if an acceptance test has been agreed between the parties: on the first day after the test period, or
- if NMQ receives a test report before the end of the test period: at the time that the Errors mentioned in that test report have beenfixed, notwithstanding the existence of imperfections which do not preclude acceptance.
- If, when the agreed acceptance test is conducted, it turns out that the implementation contains Errors which impede the progress of the acceptance test, the Client shall provide written, detailed notice to NMQ, pursuant to which the test period shall be suspended until the software has been adjusted in such a manner that this impediment is eliminated.
- If, when the agreed acceptance test is conducted, it turns out that the implementation contains Errors, the Client shall inform NMQ about the Errors through a written and detailed test report no later than on the last day of the test period. NMQ shall endeavor reasonable business efforts to fix the aforementioned Errors within a reasonable time period, with NMQ being entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in the software.
- Acceptance of implementations may not be withheld on other grounds besides those relating to the explicitly agreed specifications between the parties nor because of the existence of minor Errors, that is, Errors which do not reasonably preclude putting the implemented software to operational or productive use, notwithstanding NMQ obligation to fix these minor Errors pursuant to the Contract, if applicable. In addition, acceptance may not be withheld with regard to aspects of the implemented software which can only be evaluated subjectively, such as the design of user interfaces.
- If software is developed, delivered, installed, implemented and/or configured and tested in stages and/or parts, the non-acceptance of a particular stage and/or part shall not affect any acceptance of an earlier stage and/or another part.
- Acceptance of the software shall lead to the full discharge of NMQ for performing its obligations.
- The Client shall bear the risk of selecting any equipment purchased. NMQ shall not warrant that any equipment is appropriate for the use intended by the Client.
CLAUSE 17. TERMINATION
- When the Contract is terminated in the event of a (filing of a request for a) moratorium or (filing of) bankruptcy, NMQ shall never be obliged to refund payments received from the Client on account of this termination or to pay damages. In the event of the Client's liquidation, the right to use software provided to the Client shall be terminated.
CLAUSE 18. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
- All Deliverables shall remain NMQ property until all amounts owed by the Client for the objects delivered or to be delivered or work performed or to be performed under the Contract, as well as all other amounts which the Client owes due to a breach of its payment obligation, have been paid fully to NMQ.
- The risk of loss, theft or damage to objects, products, software or data which are the subject of the Contract shall pass to the Client at the time they have been placed at the actual disposal of the Client or any third party indicated by the Client.
- The Client shall not remove or modify any designation concerning the confidential nature or concerning copyrights, trademarks, business names or other intellectual or industrial property rights from the Deliverables (including without limitation: software, websites, databases, data carriers equipment or materials).
- The Client shall not be allowed to remove or evade any technical measures taken by NMQ to protect the software or with a view to agreed restrictions in the duration of the right to use the software. If security measures result in the Client being unable to make a back-up copy of software, NMQ shall provide the Client with a back-up copy upon request.
- Unless NMQ provides a back-up copy of software provided by NMQ to the Client, the Client may make one back-up copy of the software, which may only be used to protect against involuntary loss of possession or damage. The back-up copy may only be installed after involuntary loss of possession or damage. A back-up copy must have the same labels and copyright designations as are present on the original version.
- Subject to the other provisions of these General Terms and Conditions, the Client shall be entitled to correct Errors in software provided to it by NMQ if that is necessary.
- In the event NMQ has been engaged by the Client to develop or deliver (custom made) software, NMQ shall grant the Client the non-exclusive right to use the software. The Client shall always strictly comply with the use restrictions agreed between the parties.
- Subject to the other provisions in these General Terms and Conditions, the Client's right of use shall only include the right to load and run the software.
- The Client may only use the software in its own company or organization on the one processing unit and for a specific number or type of users or terminals for which the right of use has been furnished. Insofar as not otherwise agreed, the Client's processing unit on which the software is used for the first time and the number of terminals connected to that processing unit at the time of initial use shall be considered the processing unit and number of terminals for which the right of use has been furnished. In the event there is a malfunction in the aforementioned processing unit, the software can be used on another processing unit for the duration of the malfunction. The right of use may pertain to multiple processing units insofar as this is explicitly apparent from the Contract
- The right of use shall not be transferable. The Client shall not be allowed to sell, lease, sub-license or alienate the software and data carriers on which it has been recorded, grant restricted rights to this software or these data carriers or provide them to a third party in any manner or for any purpose whatsoever, give a third party remote or non-remote access to the software or place the software with a third party for hosting, not even if the third party in question will only use the software for the Client's benefit. The Client shall not modify the software except in connection with fixing errors.
- The Client shall not use the software to process data for third parties ("time-sharing"). The software's source code and the technical documentation generated in developing the software shall not be made available to the Client, not even if the Client is prepared to pay financial compensation for making them available. The Client acknowledges that the source code is confidential in nature and that it includes NMQ trade secrets.
- The Client shall immediately return all copies of the software in its possession to NMQ after the right to use the software ends. If the parties have agreed that the Client shall destroy the copies concerned when the right of use ends, the Client shall provide written notice of such destruction to NMQ immediately.
- Unless agreed otherwise explicitly, the Client is aware and agrees that NMQ may provide software in connection with the performance of Services that is in whole or in part subject to third party or open source software licenses. The Client and NMQ shall each comply with their respective obligations under such licenses. Nothing in a Contract will prevent NMQ from any behavior it deems necessary to comply with applicable third party or open source software licenses. In the event new releases of third party software are required for the continued use of software provided by NMQ in the performance of the Services, the Client will timely procure licenses for such new releases of third party software.
CHAPTER III: Additional Terms and Conditions for Staff Augmentation
This Chapter III sets out the terms and conditions applicable to Staff Augmentation Services (loaned staff) and is applicable – in addition to Chapters I and/or II – to any Contract pursuant to which NMQ Employees are loaned temporarily to a Client to perform Services under the guidance, control and responsibility of the Client during a certain period of time. In case of conflict with provisions of Chapter I or II, the terms of this Chapter III shall prevail.
CLAUSE 19. NATURE OF STAFF AUGMENTATION SERVICES
- In case of Staff Augmentation Services, NMQ introduces one or more NMQ Employees suitable to the requirements set out by the Client. If the Client accepts any of these NMQ Employees, they shall be working for the Client under the Client’s guidance, control and responsibility for the term and the applicable hourly rates set out in the applicable Statement of Work. All decisions in connection with the work performed by the Loaned Staff – including any advice or recommendations that may be provided in relation thereto, the implementation (if any) thereof or the achievement of any particular goal – shall exclusively be the Client’s responsibility.
- In providing the Loaned Staff, NMQ will not provide any advice, recommendation, express an opinion or any form of assurance with respect to the Client’s company or otherwise.
CLAUSE 20. RESPONSIBILITIES OF THE PARTIES
- NMQ shall provide the Loaned Staff to the Client to work in a staff augmentation capacity. NMQ ensures that it shall maintain a labor agreement between NMQ and Loaned Staff members for the duration of the Contract. Furthermore NMQ ensures that the NMQ Employees shall meet the requirements set out in the relevant Statement of Work (including in relation to the required levels of expertise and qualification) and will work at the Client’s reasonable direction for the duration of the Staff Augmentation Services.
- The Client agrees that, where the Staff Augmentation Services are to take place on the Client’s premises, the Client shall ensure that a suitable working space is provided for the Loaned Staff which shall include (without limitation) a desk, network access and, where necessary, access to data centers, server rooms and/or switch rooms. The Client shall also ensure that such premises are safe at all times.
- The Client shall do everything reasonably possible and refrain from any action that may jeopardize the fulfillment of NMQ’s legal duties as employer of Loaned Staff. The Client shall not make representations with regard to the employment of any Loaned Staff member by NMQ or the suspension or termination thereof.
- The Client shall instruct the Loaned Staff properly with regard to Client’s internal regulations concerning proper conduct on the premises of the Client including, without limitation: access and security, integrity, use of (computers and other) equipment, safety precautions and safety measures, environmental policy and any applicable codes of conduct.
- NMQ shall not induce or support NMQ Employees in any way to make a claim against the Client based on an alleged labor relationship between the Client and Loaned Staff members, except when the Client and the Loaned Staff member shall have agreed on an employment agreement between themselves mutually.
- Holiday time taken by Loaned Staff shall be subject to the Client’s pre-approval, which shall not be withheld unreasonably.
CLAUSE 21. FEES AND PAYMENT
- Unless stated otherwise in the Statement of Work, the fees payable in respect of any time spent by the NMQ Employees working on Client matters will be billed in units of one Business Day.
- If the NMQ Employee is required to work outside of a Business Day, additional fees will be chargeable at the agreed upon out-of-hours rate or, if no such out-of-hours rate has been agreed, at NMQ’s then standard out-of-hours rate.
- Expenses shall be payable as set out in the Statement of Work. Unless stated otherwise, expenses for travel to and from the Client’s or any third party’s site other than as stated in the Statement of Work will be charged in line with NMQ’s standard expenses policy.
CLAUSE 22. CANCELLING AND RESCHEDULING
- Unless agreed otherwise in writing between NMQ and the Client, the Staff Augmentation Services will commence on the date set out in the Statement of Work (the “Start Date”).
- The Client accepts and acknowledges that NMQ allocates Loaned Staff members weeks or months in advance and would suffer a loss should the Staff Augmentation Services be postponed or cancelled at short notice. As such, the Client agrees that it shall pay to NMQ (as genuinely pre-estimated liquidated damages) an amount to reflect the losses which NMQ will incur if such cancellation or rescheduling is requested within a set number of days of the Start Date (the “Cancellation Fee”).
- The Cancellation Fee shall be calculated as a percentage of the fees that correspond to the days scheduled by NMQ for provision of the Staff Augmentation Services in the applicable Statement of Work (the “Scheduled Days Cost”).
- The relevant percentages and time periods regarding the Cancelation Fees are as follows:
- cancellation request 8-21 days before the Start Date: 50% of the Scheduled Days Cost;
- rescheduling request 8-14 days before the Start Date with firm re-booking date: 50% of the Scheduled Days Cost; and
- cancellation or rescheduling request within 7 days of the Start Date: 100% of the Scheduled Days Cost.
- Charging of the Cancellation Fee is at NMQ’s discretion. NMQ will use reasonable commercial efforts to re-deploy NMQ Employees to other projects to mitigate its losses resulting from cancellation or rescheduling. If NMQ is able to successfully redeploy Loaned Staff member, then it shall reduce the Cancellation Fee payable by the Client accordingly.
- If the Client re-books the Staff Augmentation Services for another date, the fees for the Staff Augmentation Services as re-booked will be payable in addition to any Cancellation Fee.
CLAUSE 23. SCREENING AND REPLACEMENT
- NMQ shall – for the benefit of screening prior to the beginning of the project or task as set out in the Statement of Work – provide the Client with information about the skills and expertise of the selected candidates (e.g., curricula vitae) and shall ensure that NMQ Employees are fully informed and have given their explicit consent for such screening
- In the event that a NMQ Employee is not acceptable for the Client before or during the Secondment, the Client is entitled to replacement of such NMQ Employee in accordance with the replacement procedure set forth below or – if suitable replacement is not provided – shall have the right to cancel the Contract with regard to that particular candidate.
- The Client is entitled to reject the involvement of a NMQ Employee within five (5) Business Days after receipt of the information given as referred to in the aforementioned paragraph 23.1, stating the grounds for rejection. Without prejudice to Clause 23.4 en 23.5 of these General Terms and Conditions, NMQ shall as soon as reasonably possible provide another candidate. In the event that Loaned Staff shall be absent for a period longer than two (2) weeks successively, other than in the event of an approved holiday, NMQ shall at the Client’s first written request replace such staff, without prejudice to Clause 23.4 en 23.5 of these General Terms and Conditions.
- The Client shall monitor the Loaned Staff’s performance. In the event that any NMQ Employee does not perform the duties assigned to him or her within a reasonable time frame and in accordance with reasonable standards, the Client shall take all reasonable action necessary to correct such non-performance. If the Client is unable to correct such non-performance, without prejudice to Clause 23.4 of these terms, NMQ shall replace the non-performing Loaned Staff member.
- In the event that the Client notifies NMQ that a Loaned Staff member does not perform the duties assigned to him or her in a reasonable time frame and in accordance with reasonable standards, the procedure set out below shall apply. After having issued a written warning (which may be given by way of e-mail) to NMQ, the Client will be entitled to require the removal of a NMQ Employee giving two (2) weeks’ written notice.
- In the event of grossly improper behavior by any Loaned Staff member, the Client is entitled to remove such person with immediate effect subject to a written confirmation – including a detailed description of the behavior – to NMQ as soon as reasonably possible. Without prejudice to Clause 23.4 of these terms, MNQ shall co-operate with such removal and shall – as the case may be – immediately replace such person to the extent reasonably possible.
- In the event that NMQ is unable to find a suitable replacement within a mutually agreeable time frame, both parties shall have the right to cancel the remainder of the Contract with respect to such Loaned Staff member (free of charge).
- No fees shall be due to NMQ in connection with vacancies pending replacement of Loaned Staff members pursuant to justified requests as mentioned in the preceding paragraphs.
CLAUSE 24. INTELLECTUAL PROPERTY RIGHTS
- Unless explicitly agreed otherwise in writing, all work products provided by Loaned Staff under a Contract shall be for internal use of the Client (and its group companies) only.
- Without prejudice to Clause 9.1 and 9.5 of these General Terms and Conditions, the Client will become owner of any copyright in a work product created by Loaned Staff. The Client shall have the right to modify or alter any work products created by the Loaned Staff under the Contract. The Client shall delete the name of the relevant Loaned Staff member(s) on a work product and shall not refer to NMQ or to the Loaned Staff member(s) without NMQ prior written consent.
- The Client is responsible for and guarantees that it has obtained all necessary software licenses used during the Secondment. The Contract shall not confer to the Client in any way the right to use any software owned by or lawfully licensed to NMQ, unless agreed otherwise explicitly.
CLAUSE 25. LIMITATION OF LIABILITY
- Notwithstanding that the Staff Augmentation Services may be provided to the Client in connection with a wider project or objective, the Client accepts and acknowledges that: (i) NMQ shall have no liability in connection with the outcome of such wider project or objective; and (ii) that NMQ’s only obligation is to provide the NMQ Employee to work at the Client’s reasonable direction pursuant to the terms of the Contract. NMQ does not guarantee any specific results or outcomes from the Staff Augmentation Services.
- Without prejudice to Clause 10 of these General Terms and Conditions, the Client agrees that NMQ shall not be liable to the Client for any Losses attributable to the Loaned Staff’s performance, actions or behavior during their Secondment and the Client shall hold NMQ harmless from and indemnify NMQ for any Losses, including – without limitation – third party Claims. The Client shall be required to take adequate insurance with respect to Loaned Staff provided to the Client under a Contract.
- Without prejudice to Clause 10 of these General Terms and Conditions, the Client agrees that NMQ shall not be liable to the Client for any Losses attributable to the Loaned Staff’s performance, actions or behavior during their Secondment in excess of one time the fees paid under the relevant Contract in relation to the Loaned Staff member with a maximum of six months fees for any Contract for Staff Augmentation Services exceeding six months and the Client shall hold NMQ harmless from and indemnify NMQ for any Losses, including, without limitation, third party Claims, exceeding this limit, if such Losses are finally, judicially determined to have been caused by a relevant misrepresentation from NMQ in relation to the Loaned Staff member’s education, experience or formal qualifications, unless such misrepresentation must be qualified as intentional misconduct (in Dutch: “opzet”) or comparable instance of gross negligence (in Dutch: “bewuste roekeloosheid”) of NMQ, in which event the abovementioned liability cap will not apply.
- NMQ shall indemnify the Client and hold the Client harmless from and against all Claims, damages, costs and expenses related to any failure on NMQ’s part to pay any wages, remunerations, taxes or contributions due in connection with any Loaned Staff member (NMQ Employees).
- The Client agrees that NMQ shall not be obliged, responsible or liable for discontinuation of employment of any obligation, responsibility or liability to continue employing any Loaned Staff member. If employment of a Loaned Staff member is discontinued, NMQ shall inform the Client as soon as possible and the Client is entitled to replacement.
- NMQ is not liable for non-replacement of any Loaned Staff member (in a timely fashion).